Thursday round-up

Posted Thu, May 29th, 2014 8:16 am by Amy Howe

Coverage of and commentary on Tuesday’s orders and opinions continue. In The Wall Street Journal, Jess Bravin covers the decision in Hall v. Florida, in which the Court held unconstitutional Florida’s requirement that defendants facing the death penalty show an IQ test score of 70 or below before being permitted to submit additional evidence regarding their intellectual disability. Writing for the National Law Journal, Tony Mauro notes that “[a]dvocates for those with intellectual disabilities are applauding the U.S. Supreme Court for abandoning the term ‘mental retardation’” in its opinion in Hall, while Jacob Gershman – writing for The Wall Street Journal’s Law Blog – reports that statistics experts have identified two apparent errors in Justice Samuel Alito’s dissent in the case. At the PBS Newshour, Marcia Coyle discusses the Court’s ruling with anchor Judy Woodruff, while at Crime and Consequences Kent Scheidegger looks at the possible impact of the Court’s decision on other cases. And at Truthdig, Bill Blum considers the significance of the Court’s ruling, along with its decision in Wood v. Moss, more broadly.

At Bloomberg View, Noah Feldman looks at Tuesday’s decision in Wood v. Moss, in which the Court held that Secret Service agents who ordered that protesters be moved away from where President George W. Bush was eating are entitled to qualified immunity from the protesters’ viewpoint discrimination lawsuit. Feldman describes the decision as “so artful that it almost hides its inherent conflict of interest. The underlying reality seems to be that the justices, who have their own U.S. Marshals Service bodyguards and are sometimes met with protests, instinctively sided with the Secret Service — and wanted the case to disappear.”

At Crime and Consequences, Kent Scheidegger asks why the Court’s decision in Plumhoff v. Rickard, holding that the use of deadly force by police officers to stop a high-speed car chase did not violate the Fourth Amendment, was not a summary reversal, while at Re’s Judicata Richard Re contends that the decisions in Plumhoff and Wood “illustrate[] the Court’s varying and often unexplained willingness to reach the merits when finding qualified immunity.”

In its orders on Tuesday, the Court also denied review in a large group of Confrontation Clause cases involving the use of “surrogate witnesses” in criminal trials. Federal Evidence Review reports on the denial and some of the cases at issue.

Briefly:

In The New York Times, Charlie Savage reports on the federal government’s apparent effort to “find a middle course” in its invitation brief in Arab Bank v. Linde, in which the bank is challenging sanctions imposed for its failure to turn over financial records in a lawsuit brought by victims of terror attacks in the Middle East. Savage reports that “the State Department pushed to side with the bank, while the Justice and Treasury Departments wanted the executive branch to stay out of the dispute.”

In an op-ed for the Times, Linda Greenhouse explains why she “find[s] it impossible to avoid the conclusion that the [Court’s] Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.”

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.